Fiaz Ahmed Alias Fiaz Ahmad Rathar v. State Of Punjab

IN THE HIGH COURT OF PUNJAB AND HARYANA

AT CHANDIGARH

Reserved on: 02.09.2024

Pronounced on: 16.09.2024 Fiaz Ahmad @ Fiaz Ahmad Rathar

...Petitioner

Versus

State of Punjab

...Respondent

CORAM:

HON'BLE MR. JUSTICE ANOOP CHITKARA

Present:

Mr. Malkiat Singh, Advocate for the petitioner.

Mr. Sukhdev Singh, A.A.G., Punjab.

**** ANOOP CHITKARA, J.

FIR No.

Dated Police Station Sections 18.11.2022 Sadar Khanna, District Ludhiana 22/61/85 of NDPS Act 1.

The petitioner incarcerated in the FIR captioned above had come up before this Court under Section 439 CrPC, 1973 seeking regular bail. 2.

In paragraph 34 of the bail petition, the accused declares that he has no criminal antecedents.

3.

The facts and allegations are taken from the reply filed by the State. On 18th November 2022, based on prior information/a chance recovery, the Police seized 864 bottles of cough syrup and 4320 capsules of Spasmo Proxyvon R Plus from the petitioner's possession. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973. The Investigator claims to have complied with all the statutory requirements of the NDPS Act, 1985, and CrPC, 1973.

5.

The petitioner's counsel made the following submission:- "3.

That the petitioner is a friend of co-accused Suhel Vaseer Rathar involved in the illegal transaction in question. The petitioner was went along with the co-accused from Srinagar to New-Delhi. The co-accused has taken the vehicle from someone namely Goverdhan Singh S/o Shri Bajrang Singh, R/o # 154, Rajindera Park Extension, Nangloi, New Delhi make SUV 500 without the knowledge of the petitioner. The main fault of the

petitioner only to ride with the co-accused on the same vehicle nothing more than this.

That it is pertinent to mention here that the petitioner is a law abiding citizen being employee having Belt No.346/SPO of police District Sopore and posted with Deputy SP/OPS, Sopore, SDPO, Mangam and now as SDPO, Zakoora. He was known the consequences of the illegal transaction. The possibility of the petitioner not seems to indulge in such type of the illicit transaction. Moreover, the antecedents of the petitioner that he has not any criminal background before this case. No FIR was registered against him before this. The petitioner is a young men and only bread earner in the family. He has a good character and served in the police force in Jammu and Kashmir. He is not the main accused.

He has not any knowledge of this transaction and even though, he did not know the nature of the material, which was recovered during the search by the police in the vehicle and not able to recover any single material from the petitioner's possession. In fact, the vehicle and material was not belonged to the petitioner. He was simply taken lift from the other accused. Moreover, the vehicle is not in the name of the petitioner as well as co-accused. Copy of certificate issued by the Sub Divisional Police Officer. Zakoora, Srinagar is enclosed as Annexure P-1.

5.

That the petitioner has two children and wife, who is suffered from serious ailing and deprived from the treatment due to her husband is under custody without committing any offence unnecessary implicated by the police in the NDPS Act." 6.

The petitioner's counsel prays for bail by imposing any stringent conditions and contends that further pre-trial incarceration would cause an irreversible injustice to the petitioner and their family.

7.

The State's counsel opposes bail and refers to the reply. 8.

It would be appropriate to refer to para 6 of the status report, which reads as follows:- "6. That as per the FSL report, the salls Codeine Phosphate, Chlorpheniramine Hydrochloride Maleate, Dicyclomine Tramadol Hydrochloride and Acetaminophen falls under NDPS Act. 864 bottles of Cocrex Cough syrup and 4320 Capsules of Spasmo/Proxyvon R Plus fall under the commercial quantity/commercial slab. The intoxicant items which fall under commercial slab, Section 37 of NDPS Act creates a bar for regular bail."

9.

The quantity allegedly involved in this case is commercial. Given this, the rigors of S. 37 of the NDPS Act apply in the present case. The petitioner must satisfy the twin conditions put in place by the Legislature under Section 37 of the NDPS Act.

10.

In Md. Aliul Islam @ Aliul Islam @ Aliul vs The State of West Bengal, Criminal Appeal No.1202/2024, the Hon'ble Supreme Court held as under:- "Heard learned counsel for the appellant in support of the petition and learned counsel for the State and perused the material on record. The appellant is in custody for approximately 1 year 4 months.

During the course of submission it was pointed out by the learned counsel for the appellant that in another case the appellant has been granted bail and therefore, similar relief may be granted by this Court in this case.

The said submission is in response to the submission made by the learned counsel for the respondent-State that this is not the only case in which the appellant has been apprehended. She further submitted that a huge quantity of codeine cough syrup was recovered from the premises (Godown) which has been tenanted by the appellant herein. Considering the facts on record, in our view, the case for bail is made out."

11.

In Nandalal Mondal @ Abhay Mondal vs The State of West Bengal, MANU/SCOR/00327/2024, Hon'ble Supreme Court held as under:- [2]. The allegations are that the petitioner along with other accused persons were found in possession of two plastic bags a cough containing a total of 10,000 ml. Of codeine phosphate narcotic substance. It further syrup, which is notified as a narcotic substance. It further appears from the contents of the FIR that the petitioner, who was found in conscious possession of two white plastic containers both of which contained 5,000 ml. each of the said liquid. He was apprehended at the spot and is in custody since then. [3].

The respondent State of West Bengal has filed its counter affidavit, in which it is candidly acknowledged that though the investigation is complete and the chargesheet has been filed, however, the charges are yet to be framed. The prosecution proposes to examine 10 witnesses. The conclusion of trial will, thus, take considerable time. The petitioner is in custody for the last more than one and a half years.. He does not have any criminal antecedents. [4]. According to learned counsel appearing on behalf of respondent State, the narcotic substance allegedly recovered from the petitioner's possession is of commercial quantity' and, as such, the rigors of Section 37 of the NDPS Act are attracted. We have considered the submission. [5].

Taking into consideration the period already undergone by the petitioner in custody; the fact that he does not have any criminal antecedents and also keeping in view that the prolonged incarceration will not serve the cause of substantial justice, however, without expressing any views on the merits of the case, we are inclined to release the petitioner on bail at this state. The petitioner is, accordingly, directed to be released on bail subject to the following directions: (i) The petitioner shall furnish bail bonds to the satisfaction of the Trial Court.

(ii) The petitioner shall appear before the Trial Court regularly on each and every date of hearing.

(iii) In case the petitioner is found involved in any other case under the NDPS Act, in that event, the bail granted to him shall stand cancelled automatically and he shall be liable to surrender immediately.

6. The accordingly. Special Leave Petition stands disposed of accordingly."

12.

In SK. Nasiruddin @ Nasirddin SK. Vs State of West Bengal, Criminal Appeal No.1415 of 2024, the Hon'ble Supreme Court held as under:- [5]. We note the submission of the learned counsel for the appellant that the appellant was arrested on 12.04.2022 and since then he has been in custody as an under trial prisoner. Even though charges have been framed, trial is yet to begin but there is no likelihood of the trial being taken up and completed within a short period of time. It is also submitted that the appellant does not have any criminal antecedents. It is also brought to our notice that the High Court while rejecting the regular bail application had erroneously recorded that 50 ltrs. of codeine phosphate was recovered from the appellant. This is perhaps a mistake as recovery of only 5 ltrs of codeine phosphate which was mentioned in the FIR."

13.

Given this, the criminal antecedents are also not legal grounds for denying the rigors of S. 37 of the NDPS Act at this stage. 14.

The petitioner has been in custody since 18.11.2022. Given the penal provisions invoked viz-a-viz pre-trial custody, coupled with the primafacie analysis of the nature of allegations, and the other factors peculiar to this case, there would be no justifiability for further pre-trial incarceration at this stage. 15.

Without commenting on the case's merits, in the facts and circumstances peculiar to this case, and for the reasons mentioned above, the petitioner makes a case for bail. This order shall come into force from the time it is uploaded on this Court's official webpage.

16.

Given above, provided the petitioner is not required in any other case, the petitioner shall be released on bail in the FIR captioned above subject to furnishing bonds to the satisfaction of the concerned Court and due to unavailability before any nearest Ilaqa Magistrate/duty Magistrate. Before accepting the surety, the concerned Court must be satisfied that if the accused fails to appear, such surety can produce the accused. 17.

While furnishing a personal bond, the petitioner shall mention the following personal identification details:

1.

AADHAR number 2.

Passport number (If available) and when the attesting officer/court considers it appropriate or considers the accused a flight risk.

3.

Mobile number (If available) E-Mail id (If available) 18.

This order is subject to the petitioner's complying with the following terms. 19.

The petitioner shall abide by all statutory bond conditions and appear before the concerned Court(s) on all dates. The petitioner shall not tamper with the evidence, influence, browbeat, pressurize, induce, threaten, or promise, directly or indirectly, any witnesses, Police officials, or any other person acquainted with the facts and circumstances of the case or dissuade them from disclosing such facts to the Police or the Court.

20.

Given the background of allegations against the petitioner, it becomes paramount to protect the drug detection squad, their family members, as well as the members of society, and incapacitating the accused would be one of the primary options until the filing of the closure report or discharge, or acquittal. Consequently, it would be appropriate to restrict the possession of firearm(s). [This restriction is being imposed based on the preponderance of evidence of probability and not of evidence of certainty, i.e., beyond reasonable doubt; and as such, it is not to be construed as an intermediate sanction].

Given the nature of the allegations and the other circumstances peculiar to this case, the petitioner shall surrender all weapons, firearms, and ammunition, if any, along with the arms license to the concerned authority within fifteen days from release from prison and inform the Investigator about the compliance. However, subject to the Indian Arms Act, 1959, the petitioner shall be entitled to renew and take it back in case of acquittal in this case, provided otherwise permissible in the concerned rules. Restricting firearms would instill confidence in the victim(s), their families, and society; it would also restrain the accused from influencing the witnesses and repeating the offense. 21.

The conditions mentioned above imposed by this court are to endeavor to reform and ensure the accused does not repeat the offense and also to block the menace of drug abuse. In Mohammed Zubair v. State of NCT of Delhi, 2022:INSC:735 [Para 28], Writ Petition (Criminal) No 279 of 2022, Para 29, decided on July 20, 2022, A Three-Judge bench of Hon'ble Supreme Court holds that "The bail conditions imposed by the Court must not only have a nexus to the purpose that they seek to serve but must also be proportional to the purpose of imposing them. The courts, while imposing bail conditions must balance the liberty of the accused and the necessity of a fair trial. While doing so, conditions that would result in the deprivation of rights and liberties must be eschewed." 22.

Any observation made hereinabove is neither an expression of opinion on the case's merits nor shall the trial Court advert to these comments. 23.

A certified copy of this order would not be needed for furnishing bonds, and any Advocate for the Petitioner can download this order along with case status from the

official web page of this Court and attest it to be a true copy. If the attesting officer wants to verify its authenticity, such an officer can also verify its authenticity and may download and use the downloaded copy for attesting bonds. 24.

Petition allowed in terms mentioned above. All pending applications, if any, stand disposed of.

(ANOOP CHITKARA) JUDGE 16.09.2024 Whether speaking/reasoned: Yes Whether reportable:

No.